[Cite as M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C., 2014-Ohio-2537.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100684 

M6 MOTORS, INC.

PLAINTIFF-APPELLEE 

vs. 

NISSAN OF NORTH OLMSTED, LLC

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-808958 

BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: June 12, 2014 
ATTORNEYS FOR APPELLANT

Robert A. Poklar 

Shawn W. Maestle 

Matthew C. Miller 

Weston Hurd L.L.P. 

The Tower at Erieview 

1301 East 9th St., Suite 1900 

Cleveland, OH 44114 

Christopher M. Devito 

Morganstern MacAdams & Devito Co. 

623 West St. Clair Ave. 

Cleveland, OH 44113-1204 

ATTORNEYS FOR APPELLEE

James B. Niehaus 

Gregory R. Farkas 

Frantz Ward L.L.P. 

2500 Key Center 

127 Public Square 

Cleveland, OH 44114 
TIM McCORMACK, J.: 

{¶1} Defendant-appellant, Nissan of North Olmsted, LLC (“North Olmsted 

Nissan”), appeals the trial court’s order granting declaratory judgment in favor of M6 

Motors, Inc., d.b.a. Nissan of Middleburg Heights (“Middleburg Heights Nissan”). For 

the reasons that follow, we affirm the decision of the trial court. 

Procedural History and Substantive Facts 

{¶2} This appeal stems from a dispute between two Nissan dealerships: 

Middleburg Heights Nissan, which is located at 7168 Pearl Road, Middleburg Heights, 

Ohio, and North Olmsted Nissan, which is located at 28500 Lorain Road, North Olmsted, 

Ohio. Bernardo Moreno, Middleburg Heights Nissan’s principal, formed Middleburg 

Heights Nissan for the purpose of acquiring a Nissan franchise from North Coast Nissan. 

North Coast Nissan was operating out of the Pearl Road location at the time Moreno 

signed the asset purchase agreement to acquire it. Moreno signed the purchase 

agreement on March 5, 2012, and Nissan of North America, the Nissan manufacturer 

(“Nissan Manufacturer”), approved the sale of North Coast Nissan to Middleburg Heights 

Nissan on April 30, 2012. 

{¶3} After signing the purchase agreement with North Coast Nissan, Moreno met 

with Mike D’Amato, president of North Olmsted Nissan, and advised D’Amato that he 

intended to relocate the Middleburg Heights Nissan’s dealership from its current location 

on Pearl Road to 13960 Brookpark Road, Cleveland, Ohio (the “protest site”), in addition 
to 14080 Brookpark Road, purportedly for storage, which is located next door. Moreno 

had obtained a survey that measured the distances between the dealerships, measuring in 

a straight line from the closest point at each location, and forwarded the information to 

D’Amato. The survey indicated that the distance from the closest point of the property 

located at 28500 Lorain Road to the closest point of the property located at 7168 Pearl 

Road is 7.43 miles. The survey also indicated that the straight-line distance between 

28500 Lorain Road and 14080 Brookpark Road is 7.44 miles. Moreno testified that the 

distance to the 14080 Brookpark Road property, rather than 13960 Brookpark Road, was 

measured because the storage facility was the closest property to North Olmsted Nissan’s 

property. 

{¶4} Middleburg Heights Nissan sought and received approval from the Nissan 

Manufacturer for its relocation to the protest site as well as to the proposed site located at 

14080 Brookpark Road. On May 4, 2012, the Nissan Manufacturer advised North 

Olmsted Nissan that it approved the sale of North Coast’s dealership assets to Middleburg 

Heights Nissan. The Nissan Manufacturer also advised North Olmsted Nissan that it 

approved the relocation of the dealership to the protest site and that upon relocation, 

Middleburg Heights Nissan would also be maintaining an offsite storage location for new 

vehicles at 14080 Brookpark Road. 

{¶5} After learning of Middleburg Heights Nissan’s intent to relocate, North 

Olmsted Nissan filed an administrative protest with the Ohio Motor Vehicle Dealers 

Board (the “Board”) against the Nissan Manufacturer, protesting the relocation of 
Middleburg Heights Nissan’s franchise to the protest site. The protest was based on 

Moreno’s expressed intent to relocate and the measurements indicated in Moreno’s 

survey. 

{¶6} On May 15, 2012, the Board accepted North Olmsted Nissan’s protest and 

notified the Nissan Manufacturer of the protest. Upon receiving notification of North 

Olmsted Nissan’s protest, the Nissan Manufacturer moved to dismiss the protest, arguing 

that North Olmsted Nissan failed to timely protest the relocation and that a dealer has no 

right of protest when a manufacturer proposes to relocate another dealer further from that 

dealer. Middleburg Heights Nissan, who was not a party to the protest, filed a motion to 

intervene in the proceedings as well as a motion to dismiss the protest. Middleburg 

Heights Nissan argued that it has a right to intervene in the proceedings and that the 

protest should be dismissed for lack of jurisdiction. On March 27, 2013, the hearing 

examiner granted Middleburg Heights Nissan’s motion to intervene for the limited 

purposes of attending the hearing and presenting evidence to be considered by the 

examiner and the Board. The hearing examiner determined, however, that even though 

Middleburg Heights Nissan was an “other interested individual,” it did not have the right 

to engage in discovery or conduct cross-examination of the witnesses at the hearing. The 

hearing examiner also denied Middleburg Heights Nissan’s motion to dismiss as “moot 

and a legal nullity.” 

{¶7} Finally, the hearing examiner denied the Nissan Manufacturer’s motion to 

dismiss the protest, finding that North Olmsted Nissan has standing to protest the 
relocation. It also determined that the issue of the distance between the dealership and 

the protest site, whether it is 13960 Brookpark Road or 14080 Brookpark Road, is an 

issue of fact and was, therefore, not ripe for review under a motion to dismiss. It then 

ordered the matter to proceed to a hearing in order to determine whether the Nissan 

Manufacturer has good cause to relocate Middleburg Heights Nissan’s dealership within 

North Olmsted Nissan’s relevant market area. 

{¶8} Middleburg Heights Nissan states that due to the delay of approximately 

one year from the date of the protest to the hearing examiner’s order denying the Nissan 

Manufacturer’s motion to dismiss, Middleburg Heights Nissan lost the ability to acquire 

the protest site. It therefore withdrew its request to the Nissan Manufacturer to relocate 

its dealership to that location on May 31, 2013.1

{¶9} At the same time, Middleburg Heights Nissan sought approval from the 

Nissan Manufacturer for relocation to 13930 Brookpark Road, Cleveland, Ohio (the 

“proposed site”). Middleburg Heights Nissan obtained a survey that showed the distance 

from the closest point of the property located at 28500 Lorain Road to the closest point of 

 1

 Following Middleburg Heights Nissan’s withdrawal of its request to relocate its dealership 

to 13960 Brookpark Road, the Nissan Manufacturer filed with the Board a motion to dismiss as moot 

North Olmsted Nissan’s protest of the relocation to this property. North Olmsted Nissan opposed 

Middleburg Heights Nissan’s motion and filed its own cross-motion to dismiss and motion for 

summary judgment for failure to prosecute. On February 13, 2014, the hearing examiner determined 

in its report and recommendation that North Olmsted Nissan may not maintain a protest concerning 

the property located at 13960 Brookpark Road since that relocation by Middleburg Heights Nissan has 

been abandoned, and it recommended North Olmsted Nissan’s protest be dismissed as moot. On 

March 20, 2014, the Board approved the report and recommendation of the hearing examiner and 

dismissed the protest. North Olmsted Nissan subsequently appealed the Board’s dismissal to the 

trial court. 
the property located at 13930 Brookpark Road is 7.61 miles. In his request on behalf of 

Middleburg Heights Nissan, Moreno provided that while the proposed site is currently 

occupied as an Acura dealership, he has control of the property and the facility and he has 

plans to sell the Acura dealership. The Nissan Manufacturer declined to approve the 

proposed relocation on June 12, 2013, stating as follows: 

[Middleburg Heights Nissan’s] proposal to relocate to 13930 Brookpark 

Road presents [the Nissan Manufacturer] with the prospect of more of the 

same delays and failure by the Board to determine its own jurisdiction. 

[North Olmsted Nissan] has already threatened to protest any proposed 

relocation by [Middleburg Heights Nissan], presumably because it believes 

it can materially delay any approved relocation proposal by simply initiating 

a protest proceeding, regardless of whether it has any legal right to protest 

the relocation. The hearing examiner is apparently unwilling to address 

this standing question. Accordingly, because the Board failed to address 

the standing and jurisdiction issues in a timely way, [the Nissan 

Manufacturer] cannot and does not approve your request to relocate to 

13930 Brookpark Road. 

{¶10} On June 13, 2013, Middleburg Heights Nissan, filed a declaratory judgment 

action asking the trial court to declare that (1) the proper statutory interpretation of 

“further” as used in R.C. 4517.50(C)(3) requires the use of the straight line, or “as the 

crow flies,” method of measuring distance, from closest point to closest point; and (2) 
13930 Brookpark Road, the proposed site, is further from North Olmsted Nissan’s 

dealership than the current dealership location at 7168 Pearl Road. 

{¶11} North Olmsted Nissan moved to dismiss Middleburg Heights Nissan’s 

complaint, stating that the trial court lacked jurisdiction to entertain the complaint 

because there was no controversy between the parties, Middleburg Heights Nissan had 

failed to exhaust its administrative remedies, and the Nissan Manufacturer was a 

necessary party to the dispute. Thereafter, Middleburg Heights Nissan filed a motion for 

summary judgment on Count 1 of the complaint, to which North Olmsted Nissan 

responded with a cross-motion for summary judgment. 

{¶12} On August 7, 2013, the trial court issued an order denying North Olmsted 

Nissan’s motion to dismiss. The trial court found that there is a justiciable controversy 

between two parties that the legislative scheme did not contemplate the Board having 

jurisdiction to review. The trial court further held that the Nissan Manufacturer was not 

a necessary party to the action because North Olmsted Nissan does not seek any relief 

from the Nissan Manufacturer and the Nissan Manufacturer has no “legally protectable 

rights” relating to either count of Middleburg Heights Nissan’s complaint. On August 

15, 2013, North Olmsted Nissan filed a motion for reconsideration, or alternatively, 

motion to stay, which was denied.2

 

 2

On August 26, 2013, North Olmsted Nissan filed a complaint for writ of mandamus and 

prohibition with the Ohio Supreme Court concerning the trial court’s jurisdiction over Middleburg 

Heights Nissan’s complaint, which the supreme court dismissed. 
{¶13} On October 10, 2013, the court held a hearing on Counts 1 and 2 of the 

complaint, during which time it heard arguments on summary judgment. On November 

25, 2013, the court entered judgment in favor of Middleburg Heights Nissan and against 

North Olmsted Nissan on all counts of the complaint. It declared that the straight line 

method of measurement is the appropriate method of measuring the distance between the 

properties for purposes of enforcing R.C. 4517.50(C)(3). The court further declared that 

the property located at 13930 Brookpark Road, Cleveland, Ohio, is “further” as that term 

is used in R.C. 4517.50(C)(3) from North Olmsted Nissan’s dealership at 28500 Lorain 

Road, North Olmsted, Ohio, than Middleburg Heights Nissan’s current dealership at 7168 

Pearl Road, Middleburg Heights, Ohio. 

Assignments of Error

I. Because Middleburg Heights Nissan lacks standing, the trial court did 

not have jurisdiction to issue its November 25, 2013 declaratory judgment 

and the order is void ab initio as a matter of law and the trial court erred in 

not declaring same. 

II. Assuming arguendo that this court determines that Middleburg Heights 

Nissan had the requisite standing, the trial court erred by declaring the word 

“further” as used in R.C. 4517.50(C)(3) is defined as measured by a straight 

line from the closest point of an existing line-make new motor vehicle 

dealer to the closest point of a relocating line-make new motor vehicle 

dealer. 

III. Because Middleburg Heights Nissan failed to exhaust its 

administrative remedies, the trial court erred in not dismissing the action. 

IV. Because the board has exclusive jurisdiction, the trial court erred in 

not dismissing the action. 

 
Standing

{¶14} For ease of discussion, we will address North Olmsted Nissan’s assignments 

of error out of order. 

{¶15} In North Olmsted Nissan’s first assignment of error, it claims that the trial 

court did not have jurisdiction to review the complaint for declaratory judgment because 

Middleburg Heights Nissan did not have standing. As a result, North Olmsted Nissan 

argues that the court’s order of November 25, 2013, granting declaratory judgment in 

favor of Middleburg Heights Nissan is void. 

{¶16} Standing is a jurisdictional prerequisite that must be resolved in order for a 

trial court to adjudicate an action. Belvino L.L.C. v. Empson United States, 8th Dist. 

Cuyahoga No. 97305, 2012-Ohio-3074, ¶ 16, citing State ex rel. Jones v. Suster, 84 Ohio 

St.3d 70, 77, 701 N.E.2d 1002 (1998). It is “‘part of the common understanding of what 

it takes to make a justiciable case.’” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 

Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 21, quoting Steel Co. v. Citizens for 

a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). 

“[S]tanding is not a technical rule intended to keep aggrieved parties out of court.” 

Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 47. 

Rather, it is a “practical concept” that is utilized to prevent the litigation of nonjusticiable 

interests and to ensure that a real controversy is adjudicated. Id., citing Fort Trumbull 

Conservancy, L.L.C. v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003), quoting 
Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981). Courts are typically 

“generous” in determining whether a party has standing. Id. 

{¶17} A justiciable matter is an actual controversy between parties. Pointe at 

Gateway Condo. Owner’s Assn. v. Schmelzer, 8th Dist. Cuyahoga Nos. 98761 and 99130, 

2013-Ohio-3615, ¶ 25, citing State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of 

Common Pleas, 74 Ohio St.3d 536, 542, 660 N.E.2d 458 (1996). Declaratory judgment 

actions may be filed for the purposes of deciding an actual controversy. Mid-Am. Fire & 

Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9. In 

order for a justiciable question to exist, the “threat” to a party’s position “‘must be actual 

and genuine and not merely possible or remote.’” Id., citing League for Preservation of 

Civil Rights v. Cincinnati, 64 Ohio App. 195, 197, 28 N.E.2d 660 (1st Dist.1940), quoting 

Borchard, Declaratory Judgments (1934) 40. 

{¶18} The purpose of a declaratory judgment action is “to serve the useful end of 

disposing of uncertain or disputed obligations quickly and conclusively.” Moore at ¶ 46, 

quoting Ohio Farmers Indemn. Co. v. Chames, 170 Ohio St. 209, 213, 163 N.E.2d 367 

(1959). To that end, courts construe the declaratory judgment statute liberally. Id. 

Issues of statutory interpretation can be properly presented in a complaint for declaratory 

judgment. See R.C. 2721.03. 

{¶19} In order to obtain relief under the Declaratory Judgment Act, R.C. 2721.01, 

et seq., a party must establish: (1) a real controversy exists between the parties; (2) the 

controversy is justiciable; and (3) speedy relief is necessary to preserve the rights of the 
parties. Burger Brewing Co. v. Ohio Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 

N.E.2d 261 (1973). A trial court may dismiss a complaint for declaratory judgment 

without addressing the merits of the case if there is (1) neither a justiciable issue nor an 

actual controversy between the parties requiring speedy relief, or (2) the declaratory 

judgment will not terminate the uncertainty or controversy. Haley v. Bank of Am., 8th 

Dist. Cuyahoga No. 98207, 2012-Ohio-4824, ¶ 11. For purposes of a declaratory 

judgment action, a controversy exists “when there is a genuine dispute between the 

parties having adverse legal interests of sufficient immediacy and reality to warrant the 

issuance of a declaratory judgment.” Wagner v. Cleveland, 62 Ohio App.3d 8, 13, 574 

N.E.2d 533 (8th Dist.1988), citing Burger Brewing Co. 

{¶20} A trial court’s determination regarding the justiciability of a declaratory 

judgment action is reviewed for an abuse of discretion. Arnott v. Arnott, 132 Ohio St.3d 

401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. An abuse of discretion suggests that a trial 

court’s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Once a trial court determines 

that a matter is appropriate for declaratory judgment, its decision regarding the questions 

of law are reviewed de novo. Arnott. 

{¶21} North Olmsted Nissan contends that Middleburg Heights Nissan does not 

have a justiciable controversy with North Olmsted Nissan because Middleburg Heights 

Nissan has admitted that the Nissan Manufacturer denied its request to relocate to 13930 

Brookpark Road. North Olmsted Nissan argues that because there has already been a 
denial by the manufacturer, any threat by North Olmsted Nissan to protest relocation is 

not a present dispute, rather the dispute is a possible controversy in the future, which is 

contingent upon events that have not occurred and may not occur. 

{¶22} Middleburg Heights Nissan alleges, on the other hand, that (1) the Nissan 

Manufacturer’s denial of its request to relocate to the proposed site was based upon North 

Olmsted Nissan’s threat to protest, (2) North Olmsted Nissan’s threat to continue to 

protest any relocation attempts made by Middleburg Heights Nissan creates a present 

and on-going dispute and is therefore an actual controversy, and (3) the matter can be 

resolved by the court’s interpretation of “further” as defined in R.C. 4517.50(C)(3) and its 

application of that definition to the proposed site. 

{¶23} On August 7, 2013, the trial court denied North Olmsted Nissan’s motion to 

dismiss Middleburg Heights Nissan’s complaint for declaratory judgment, finding a 

substantive and justiciable controversy between the parties. The court determined that 

North Olmsted Nissan’s “threatened protest can be resolved by [the] court defining [the] 

statutory meaning of ‘further’ and applying that definition to [Middleburg Heights 

Nissan’s] new property in comparison to [North Olmsted Nissan’s] property.” The court 

also found that the “real and substantial controversy [ ] will admit a decree conclusive in 

character.” 

{¶24} R.C. 4517.50(A) requires a franchisor who intends to relocate a dealership 

to disclose its relocation plans to any dealers of the same line-make of vehicle under 

certain circumstances. Specifically, R.C. 4517.50(A) provides that: 
Except as provided in division (C) of this section, when a franchisor seeks 

to * * * relocate an existing new motor vehicle dealer at a location in a 

relevant market area where the same line-make of motor vehicle is then 

represented, the franchisor shall first give notice in writing, by certified 

mail, to the motor vehicle dealers board and to each franchisee of such 

line-make in the relevant market area of the franchisor’s intention to * * * 

relocate an existing new motor vehicle dealer at a location in that relevant 

market area. * * * Within fifteen days after receiving the notice, or within 

fifteen days after the conclusion of any appeal procedure provided by the 

franchisor, whichever is later, the franchisee of the same line-make may file 

with the board a protest against the * * * relocation of the proposed new 

motor vehicle dealer. When such a protest has been filed, the board shall 

inform the franchisor that a timely protest has been filed and that a hearing 

is required pursuant to section 4517.57 of the Revised Code. * * * 

{¶25} The notification requirement outlined above does not apply, however, when 

“[t]he relocation of an existing new motor vehicle dealer * * * relocates further from an 

existing line-make new motor vehicle dealer although the relocation is within the same 

line-make new motor vehicle dealer’s relevant market area.” (Emphasis added.) R.C. 

4517(C)(3). Therefore, if the proposed relocation site is “further” from the existing 

dealership, notification is not required, and as a result, there is no protest. 
{¶26} Here, Middleburg Heights Nissan notified the Nissan Manufacturer that it 

wished to relocate its Nissan dealership to 13930 Brookpark Road, after Middleburg 

Heights Nissan had lost its ability to relocate to the original protest site of 13960 

Brookpark Road. Middleburg Heights Nissan maintains that the proposed site is 

“further” from North Olmsted Nissan than its existing dealership. According to the 

statute, if the proposed site is “further” than the existing location, then North Olmsted 

Nissan could not protest the relocation. Previously, the Board determined at the hearing 

on the original protest (to relocation to 13960 Brookpark Road) that North Olmsted 

Nissan did, in fact, have standing to bring the protest. It failed, however, to make a 

determination of the meaning of “further” as used in R.C. 4517.50(C)(3). 

{¶27} The Nissan Manufacturer denied Middleburg Heights Nissan’s request to 

relocate to 13930 Brookpark Road, based upon North Olmsted Nissan’s threatened 

protest, stating that North Olmsted Nissan has already threatened to protest any proposed 

relocation by Middleburg Heights Nissan, “regardless of whether it has any legal right to 

protest the relocation.” The Nissan Manufacturer further stated that because the Board 

is unwilling to address the issue of whether North Olmsted Nissan has standing to protest 

Middleburg Heights Nissan’s relocation request, “[The Nissan Manufacturer] cannot and 

does not approve [Middleburg Heights Nissan’s] request to relocate to 13930 Brookpark 

Road.” 

{¶28} Through this denial, the Nissan Manufacturer has made it clear that it will 

not approve any relocation requests made by Middleburg Heights Nissan because of 
North Olmsted Nissan’s threatened protest and the unsettled matter of whether the 

proposed relocation site is “further” from North Olmsted Nissan than Middleburg Heights 

Nissan’s existing dealership. As such, as Moreno testified, Middleburg Heights Nissan 

is effectively prevented from relocating. The threat to Middleburg Heights Nissan is 

therefore an actual controversy that is presently occurring. Moreover, without a 

determination of the statutory meaning of “further,” the Nissan Manufacturer will not 

approve any requests for relocation made by Middleburg Heights Nissan for fear of 

another protest by North Olmsted Nissan. 

{¶29} North Olmsted Nissan provides that Middleburg Heights Nissan’s claims of 

North Olmsted Nissan’s “threatened protest” are merely hypothetical or speculative and 

are based on contingent events that have not occurred. As an example, it states that the 

proposed relocation site is currently occupied by another dealership, and therefore, 13930 

Brookpark Road is not available to Middleburg Heights Nissan. North Olmsted Nissan 

further states that even if the site becomes available, Middleburg Heights Nissan must 

still seek and obtain approval from the Nissan Manufacturer for its relocation to that site 

once it becomes available, and there is no evidence that the Nissan Manufacturer would 

approve the relocation. 

{¶30} As Middleburg Heights Nissan correctly notes, however, the controversy at 

issue in this matter is not whether Middleburg Heights Nissan may move to the proposed 

relocation site, as Middleburg Heights Nissan did not ask the trial court to approve its 

relocation. Rather, the controversy involves the interpretation and application of R.C. 
4517.50(C)(3), which is a proper basis for a declaratory judgment action. Without the 

timely resolution of the statutory meaning of “further,” Middleburg Heights Nissan 

cannot take the very first step in relocating, which is seeking approval from the Nissan 

Manufacturer. Middleburg Heights Nissan is therefore effectively prevented from 

relocating its dealership. As such, absent a declaratory judgment on this issue, 

Middleburg Heights Nissan will have no available remedy. 

{¶31} North Olmsted Nissan also argues that a declaratory judgment will not 

terminate the uncertainty or any controversy because the Nissan Manufacturer is not a 

party to the action. In its order denying North Olmsted Nissan’s motion to dismiss, the 

trial court held that the Nissan Manufacturer was not a necessary party because 

Middleburg Heights Nissan is not seeking relief from the Nissan Manufacturer and this 

action would not bind the Nissan Manufacturer in any way, stating that “[the Nissan 

Manufacturer] has no legally protectable rights relating to either count [for] which 

[Middleburg Heights Nissan] has sought relief.” 

{¶32} Under R.C. 2721.12(A), when declaratory relief is sought, “all persons 

who have or claim any interest that would be affected by the declaration shall be made 

parties to the action or proceeding.” The failure to join a necessary party “is a 

jurisdictional defect” and declaratory judgment is therefore precluded. Bretton Ridge 

Homeowners Club v. DeAngelis, 51 Ohio App.3d 183, 185, 555 N.E.2d 663 (8th 

Dist.1988), citing Cincinnati v. Whitman, 44 Ohio St.2d 58, 337 N.E.2d 773 (1975). 
{¶33} In the context of a declaratory judgment action, “only those persons who are 

legally affected are proper parties to a lawsuit.” Driscoll v. Austintown Assoc., 42 Ohio 

St.2d 263, 273, 328 N.E.2d 395 (1975), quoting Schriber Sheet Metal & Roofers v. Shook, 

64 Ohio App. 276, 285, 28 N.E.2d 699 (2d Dist.1940). A party is “legally affected” if 

the party has a legal interest in rights that are the subject matter of the cause of action. 

Rumpke Sanitary Landfill, Inc. v. State, 128 Ohio St.3d 41, 2010-Ohio-6037, 941 N.E.2d 

1161, ¶ 14. A “legal interest” is an interest that is “legally protectable.” Id. 

{¶34} Here, Middleburg Heights Nissan’s complaint for declaratory judgment does 

not seek any relief from the Nissan Manufacturer. Middleburg Heights Nissan is not 

asking the trial court to approve its relocation or to direct the Nissan Manufacturer to 

perform in any manner. Rather, Middleburg Heights Nissan is asking the trial court to 

interpret R.C. 4517.50(C)(3) and to apply that interpretation to its proposed relocation 

site. Although the Nissan Manufacturer likely has a practical interest in the outcome of 

the action — the court’s interpretation will ultimately determine whether North Olmsted 

Nissan has standing to protest, thus establishing whether the Nissan Manufacturer 

becomes involved in the proposed relocation — it has no legally protectable interest in 

the court’s interpretation and application of the statute. In other words, the trial court’s 

judgment would not legally bind the Nissan Manufacturer. The Nissan Manufacturer is 

therefore not a necessary party to Middleburg Heights Nissan’s complaint for declaratory 

judgment. 
{¶35} In light of the foregoing, we do not find that the trial court abused its 

discretion in finding a real and justiciable controversy that will be effectively resolved by 

the quick and conclusive relief obtained through a declaratory judgment. 

{¶36} North Olmsted Nissan’s first assignment of error is overruled. 

Administrative Remedies and Board’s Exclusive Jurisdiction

{¶37} In its third and fourth assignments of error, North Olmsted Nissan claims 

that the trial court erred in not dismissing Middleburg Heights Nissan’s complaint 

because the Board has exclusive authority to determine relocation protests and 

Middleburg Heights Nissan failed to exhaust its administrative remedies. Because North 

Olmsted Nissan’s third and fourth assignments of error address the trial court’s alleged 

error in not dismissing Middleburg Heights Nissan’s complaint and the claims are related, 

we will address them together. 

{¶38} In its order denying North Olmsted Nissan’s motion to dismiss Middleburg 

Heights Nissan’s complaint, the trial court determined that Middleburg Heights Nissan’s 

declaratory judgment action did not circumvent the administrative proceedings. The 

court found that the current action “relates to a different property[] and involves a 

controversy between two parties which the legislative scheme did not contemplate the 

[Motor Vehicle Dealers Board] having jurisdiction to hear.” 

{¶39} A party filing a complaint for declaratory judgment must first exhaust any 

administrative remedies before invoking the jurisdiction of the common pleas court. 

Jones v. Chagrin Falls, 77 Ohio St.3d 456, 462, 674 N.E.2d 1388 (1997). The failure to 
exhaust administrative remedies is not a jurisdictional defect to a declaratory judgment 

action; rather, it is an affirmative defense. Id. Where a party fails to exhaust available 

administrative remedies, allowing declaratory relief would serve “only to circumvent an 

adverse decision of an administrative agency and to bypass the legislative scheme.” 

Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 152, 586 N.E.2d 80 (1992). 

{¶40} A party is not required to exhaust administrative remedies, however, where 

there is no administrative remedy available. Kaufman v. Newburgh Hts., 26 Ohio St.2d 

217, 271 N.E.2d 280 (1971). An administrative remedy would not be available, for 

instance, where an administrative body “lacks the authority to grant the relief sought.” 

State ex rel. Teamsters Local Union No. 436 v. Bd. of County Commrs., 132 Ohio St.3d 

47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 24, quoting Nemazee v. Mt. Sinai Med. Ctr., 56 

Ohio St.3d 109, 115, 564 N.E.2d 477 (1990). 

{¶41} An administrative agency can exercise only the jurisdiction conferred upon 

it by statute. Time Warner AxS v. Pub. Util. Comm., 75 Ohio St.3d 229, 234, 661 N.E.2d 

1097 (1996). In other words, an administrative agency has no authority beyond its 

statutorily delegated powers and may only exercise those powers the General Assembly 

expressly granted to it. Shell v. Ohio Veterinary Med. Licensing Bd., 105 Ohio St.3d 

420, 2005-Ohio-2423, 827 N.E.2d 766, ¶ 32. 

{¶42} The statute at issue in this case is R.C. 4517.50, of the Ohio Motor Vehicle 

Dealers Act. This statute governs the jurisdiction of the Ohio Motor Vehicle Dealers 

Board over relocation disputes. It provides that a dealer may protest a relocation 
approved by a manufacturer under certain circumstances. See R.C. 4517.50(A). The 

Board’s jurisdiction over such relocation disputes is limited to that statute. See Jack 

Matia Chevrolet, Inc. v. GMC, 10th Dist. Franklin No. 06AP-360, 2007-Ohio-420, ¶ 14. 

{¶43} North Olmsted Nissan’s argument fails for several reasons. First, 

Middleburg Heights Nissan’s complaint for declaratory judgment does not concern an 

ongoing relocation dispute. Rather, it seeks the trial court’s interpretation of the meaning 

of “further” as stated in R.C. 4517.50(C)(3) and its application to a proposed site of 

relocation in order that Middleburg Heights Nissan may relocate its dealership. Second, 

R.C. 4517.50 governs when there is a dispute between a manufacturer and a dealer. It 

does not govern disputes between two dealers, such as North Olmsted Nissan and 

Middleburg Heights Nissan. Moreover, the record shows that Middleburg Heights 

Nissan was not a party to the original relocation dispute. Middleburg Heights Nissan’s 

motion to intervene in the dispute was essentially denied by the hearing examiner, 

allowing only Middleburg Heights Nissan’s presence and strictly limiting involvement at 

the hearing. 

{¶44} Finally, as the trial court states in its order denying North Olmsted Nissan’s 

motion to dismiss, the original relocation protest concerned the property located at 13960 

Brookpark Road. The protest concerning that property has been dismissed for mootness 

because the site is no longer available for a Nissan franchise. The current proposed site, 

however, which is the property at issue in Middleburg Heights Nissan’s complaint, is 

13930 Brookpark Road. The Nissan Manufacturer has stated that it will not approve this 
site unless and until the proper meaning of “further” is addressed by the court. The 

proposed site is therefore not the subject of a protest and is likewise not the subject of an 

administrative proceeding. 

{¶45} In light of the foregoing, we find that the trial court did not abuse its 

discretion in finding that Middleburg Heights Nissan did not fail to exhaust its 

administrative remedies because Middleburg Heights Nissan had no administrative 

remedy available to it. The Board therefore had no statutorily provided jurisdiction over 

Middleburg Heights Nissan’s complaint for declaratory judgment. 

{¶46} North Olmsted Nissan’s third and fourth assignments of error are overruled. 

Statutory Interpretation of R.C. 4517.50(C)(3)

{¶47} In its second assignment of error, North Olmsted Nissan claims that the trial 

court erred in declaring the word “further” as used in R.C. 4517.50(C)(3) is defined as 

measured by a straight line from the closest point of an existing line-make new motor 

vehicle dealer to the closest point of a relocating line-make new motor vehicle dealer. 

North Olmsted Nissan contends that the appropriate method of measurement is distance 

traveled. 

{¶48} Statutory interpretation is a question of law that we review de novo. State 

v. Lindstrom, 8th Dist. Cuyahoga No. 96653, 2011-Ohio-6755, ¶ 8, citing State v. 

Sufronko, 105 Ohio App.3d 504, 506, 664 N.E.2d 596 (1995). 

{¶49} The principal consideration with respect to the interpretation of a statute is 

the legislative intent. State v. Garner, 8th Dist. Cuyahoga Nos. 97948 and 97949, 
2012-Ohio-3262, ¶ 10, citing State v. Jordan, 89 Ohio St.3d 488, 491, 733 N.E.2d 601 

(2000). Courts must first look to the language of the statute itself in order to determine 

the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 298, 304 N.E.2d 

378 (1973). When examining the actual language of a statute, words should be given 

their common and ordinary meaning unless the legislature has clearly expressed a 

contrary intention. Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 

262 (1970); R.C. 1.42. 

{¶50} If a statute is clear and unambiguous, the statute must be applied as written 

and no further interpretation is necessary. State ex rel. Savarese v. Buckeye Local School 

Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463, 465 (1996). The court must 

give effect to the words used in a statute, while avoiding “‘delet[ing] words used or 

insert[ing] words not used.’” Bernardini v. Conneaut Area City School Dist. Bd. of Edn., 

58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban Coach Lines v. 

Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). A court may therefore 

interpret a statute only where the words of the statute are ambiguous. State ex rel. 

Celebrezze v. Allen Cty. Bd. of Commrs., 32 Ohio St.3d 24, 27, 512 N.E.2d 332 (1987). 

{¶51} A statute is ambiguous if the language is susceptible to more than one 

reasonable interpretation. Cleveland Clinic Found. v. Bd. of Zoning Appeals, 8th Dist. 

Cuyahoga No. 98115, 2012-Ohio-6008, ¶ 21; State ex rel. Toledo Edison Co. v. Clyde, 76 

Ohio St.3d 508, 513, 668 N.E.2d 498 (1996). If a statute is ambiguous, the court may 

consider several factors, including the object sought to be obtained, the legislative history, 
other laws upon the same or similar subjects, and the consequence of a particular 

construction. R.C. 1.49; Jordan at 492. 

{¶52} In order to clarify an ambiguity, statutory provisions must be read together 

in order to “‘provide[] the proper effect to each statute.’” Blair v. Bd. of Trustees of 

Sugarcreek Twp., 132 Ohio St.3d 151, 2012-Ohio-2165, 970 N.E.2d 884, ¶ 18, quoting 

State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-2610, 

910 N.E.2d 432, ¶ 25. In that regard, “[a]ll provisions of the Revised Code bearing upon 

the same subject matter should be construed harmoniously unless they are irreconcilable.” 

Id. 

{¶53} R.C. 4517.50(A) provides that a dealer may protest a manufacturer’s 

approval of the relocation of another dealership “[w]ithin fifteen days after receiving the 

notice [of the relocation], or within fifteen days after the conclusion of any appeal 

procedure provided by the franchisor, whichever is later * * *.” This section does not 

apply to “[t]he relocation of an existing new motor vehicle dealer that relocates further

from an existing line-make new motor vehicle dealer although the relocation is within the 

same line-make new motor vehicle dealer’s relevant market area.” (Emphasis added.) 

R.C. 4517.50(C)(3). “Relevant market area” is defined as “any area within a radius of 

ten miles from the site of a potential new dealership.” R.C. 4517.01(DD). 

{¶54} The statute does not define the word “further.” The ordinary meaning of 

“further” has been defined in terms of distance. Webster’s Unabridged Dictionary (2d 

Ed.1998) (defining “further” as “at or to a greater distance”). We must therefore 
determine the proper measurement of the distance between the locations identified in R.C. 

4517.50(C)(3). According to North Olmsted Nissan, “further” should be defined as 

measured by the distance traveled. Middleburg Heights Nissan, on the other hand, states 

that “further” is properly defined as measured using a straight-line method, or “as the 

crow flies.” 

{¶55} Courts have generally favored the straight-line method of measurement in 

statutes that require distance to be measured but do not specify the method of 

measurement. In a case involving the interpretation of the proper measure of distance in 

a statute governing the weighing of motor vehicles, the Ohio Supreme Court reversed the 

court of appeals’ ruling that the phrase “within three miles” meant “road miles,” or drive 

distance. State v. Shepherd, 61 Ohio St.2d 328, 401 N.E.2d 934 (1980). In that case, 

R.C. 4513.33 permitted a police officer to require motor vehicles to proceed to the nearest 

available scales to be weighed, “provided such scales are within three miles of the point 

where such vehicle is stopped.” The defendant had been stopped and ordered to have his 

truck weighed. The scales, when measured by a straight line, were less than one mile 

from the point at which the defendant had been stopped. When measured in “road 

miles,” they were approximately seven miles from the stopping point. 

{¶56} Looking at the statute, the supreme court found the General Assembly’s 

intent to be controlling, finding that the legislature deliberately chose the language 

“within three miles,” rather than the “use of an inflexible road mileage limitation” to 
allow the police to effectively enforce load limitations. Shepherd at 330. In reversing 

the court of appeals, the court stated: 

If the General Assembly had intended to require the use of road miles, it 

would have surely used a phrase more explicitly indicating that intent. The 

common understanding of the phrase “within three miles” is that it refers to 

straight-line distance. 

Id. at 331. 

{¶57} More recently, lower courts have adopted the straight-line method of 

measurement. In a case involving the interpretation of the phrase “within one thousand 

feet” contained within the residency restriction in R.C. 2950.034, the Tenth District Court 

of Appeals applied the ordinary meaning of the term “within” and determined that the 

straight-line approach is the proper method of measurement. State ex rel. O’Brien v. 

Messina, 10th Dist. Franklin No. 10AP-37, 2010-Ohio-4741, ¶ 16. The court reasoned 

that the straight line approach “provides more predictability and more uniform application 

than does the navigable distance approach, which would put the distance between the two 

locations in flux depending on the construction or destruction of infrastructure.” Id. The 

court further found that the straight line should be measured “from property line to 

property line.” Id. at ¶ 18; see also State ex rel. O’Brien v. Heimlich, 10th Dist. Franklin 

No. 08AP-521, 2009-Ohio-1550 (the court approving the straight-line measurement 

through global imaging software to calculate the distance between an offender’s residence 

and a school premises for the purposes of interpretation of R.C. 2950.034(A)); State v. 
Franklin, 164 Ohio App.3d 758, 2005-Ohio-6854, 843 N.E.2d 1267 (holding the court 

could rely on global imaging software to compute the distance between two locations 

using a straight line approach for drug trafficking charges enhanced for occurring within 

1,000 feet of a school premises); Drs. Guren, Jaffe & Assoc, Inc. dba Am. Dental Ctrs. 

v. Phillip, 11th Dist. Lake No. 10-112, 1984 Ohio App. LEXIS 10938 (Oct. 5, 1984) 

(finding the plain and ordinary meaning of the phrase “in or within five (5) miles” 

unambiguously requires a straight-line distance in the interpretation of an employment 

contract). 

{¶58} This court has also adopted the straight-line measurement with respect to a 

non-competition agreement. Frederick D. Harris, M.D., Inc. v. Univ. Hosps., 8th Dist. 

Cuyahoga Nos. 76724 and 76785, 2002-Ohio-983. In that case, where the 

non-competition agreement did not specify the manner in which to measure the distance, 

we rejected the drive distance method of computing distance between two office 

locations, stating that “[c]ase law has been historically uniform in rejecting this theory 

and in holding that the correct way to measure the distance between locations is as the 

crow flies, or the straight-line approach used by a surveyor. Id. at ¶ 20. 

{¶59} Significantly, an appellate court impliedly adopted the use of a straight-line 

method of measurement as it applied to a relocation protest under R.C. 4517.50. 

Fleisher v. Ford Motor Co., 10th Dist. Franklin No. 09AP-139, 2009-Ohio-3846. In that 

case, the section of the statute at issue was R.C. 4517.50(C)(1), which provides that the 
notice requirements outlined in R.C. 4517.50(A) do not apply to “[t]he relocation of an 

existing new motor vehicle dealer within one mile from the existing location.” 

{¶60} In Fleisher, Rouen Lincoln Mercury sold its dealership to Brondes Ford. 

Brondes then moved the Lincoln Mercury dealership to the Brondes Ford location. Both 

dealerships were within the relevant market area of another Lincoln Mercury dealership, 

which was owned by Robert Fleisher. Fleisher protested the relocation, alleging that 

Ford violated the statute by failing to provide Fleisher notice of the relocation. Ford 

obtained a straight-line measurement of the distance between Rouen Lincoln Mercury 

location and Brondes Ford, which revealed that the distance was .54 miles. 

{¶61} Based upon this measurement, Ford moved to dismiss the protest. Relying 

on Ford’s measurement and R.C. 4517.50(C)(1), the hearing examiner found that because 

the relocation was less than one mile, the notice requirement of R.C. 4517.50 did not 

apply, and as a result, Fleisher had no right to protest. Id. at ¶ 7. The Board adopted the 

hearing examiner’s report and recommendation that Fleisher’s protest be dismissed. Id.

at ¶ 8. Fleisher then appealed the Board’s decision, which was upheld by the trial court. 

Upon further appeal, the Tenth District Court of Appeals affirmed the trial court’s 

decision, stating that “it is undisputed that the new Brondes dealership was less than one 

mile away from the existing Brondes dealership” and, therefore, R.C. 4517.50(C)(1) 

exempted Ford from the notice requirements. Fleisher at ¶ 14. It is therefore clear from 

this decision that the Tenth District relied on Ford’s straight-line measurement between 
locations in order to find that the exception to the notice requirements of R.C. 4517.50 

applied to Ford’s relocation. 

{¶62} Additionally, in looking at the statute itself, we do not find that the language 

in the statute expressly indicates an intent to define “further” as measured by distance 

traveled, rather than straight-line measurement. And if the legislature had intended to 

require the use of road miles for purposes of applying the exception outlined in R.C. 

4517.50(C)(3), it would have used a phrase more explicitly indicating that intent. See 

Shepherd, 61 Ohio St.2d at 331, 401 N.E.2d 934. 

{¶63} Moreover, the language in other parts of the statute suggests a straight-line 

measurement for distances between two locations. R.C. 4517.50 (DD) defines “relevant 

market area” as an area within a radius of ten miles from the site of the existing dealer. 

As previously outlined, courts have applied the ordinary meaning of the term “within” 

and determined that the straight-line approach is the proper method of measurement 

where that term is used. Reading R.C. 4517.50(DD) in conjunction with R.C. 

4517.50(C)(3), as we are required to do, we find that the legislature intended “further” to 

be defined in the same manner. See Sims v. Nissan North Am., Inc., 10th Dist. Franklin 

Nos. No. 12AP-833, 12AP-835, 2013-Ohio-2662, ¶ 32 (where statutes relate to one 

another, they should be read together); Chrysler Corp. v. Bowshier, 10th Dist. Franklin 

No. 01AP-921, 2002-Ohio-1443 (because R.C. 4517.65(A) and (B) relate to one another, 

they must be read together); R.C. 1.42 (words and phrases must be read in context and 

construed according to the rules of grammar and common usage). 
{¶64} In support of its argument that “further” should be defined by the distance 

traveled, North Olmsted Nissan cites to Bd. of Edn. v. Bd. of Edn., 58 Ohio St. 390, 50 

N.E. 812 (1898). In that case from 1898, the Ohio Supreme Court defined “further” as 

requiring a measurement by the nearest practical traveled route as applied to a statute that 

permitted kindergarten students to attend a school outside of their district if the closest 

school in their district was “further.” The court reasoned that because the legislation 

“provides for the convenience of children,” the distance “is to be taken as they travel 

along the most direct public highway.” Id. at 394. In reaching its decision, the court 

determined that the statute demonstrated an intent that a measurement other than a 

straight line be used. And the intent of a statute is, in fact, controlling. Jordan, 89 Ohio 

St.3d at 491, 2000-Ohio-225, 733 N.E.2d 601. By contrast, R.C. 4517.50(C)(3) does not 

express such an intent, and therefore, we apply the straight-line measurement in defining 

distance. Shepherd, 61 Ohio St.2d at 331, 401 N.E.2d 934; Messina, 10th Dist. 

Franklin No. 10AP-37, 2010-Ohio-4741. 

{¶65} Finally, North Olmsted Nissan argues that industry standards establish that 

drive distance or travel time is the preferred method of measurement in the motor vehicle 

industry. In support of its argument, North Olmsted Nissan provided the expert 

testimony of John Matthews. This testimony, however, is irrelevant to the court’s 

interpretation of R.C. 4517.50(C)(3). Statutory interpretation of undefined terms in a 

statute is a question of law, not of fact. Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 

2012-Ohio-5317; 981 N.E.2d 795, ¶ 31, citing Akron Centre Plaza, L.L.C. v. Summit 
Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054. Moreover, 

it is error for a court to allow an expert “to interpret for the jury what the statute requires.” 

Kraynak v. Youngstown City Sch. Dist. Bd. of Edn., 118 Ohio St.3d 400, 

2008-Ohio-2618; 889 N.E.2d 528, ¶ 21. 

{¶66} Based upon the foregoing, we find that the trial court correctly interpreted 

R.C. 4517.50(C)(3) in defining “further” as measured by a straight line from the closest 

point of an existing line-make new motor vehicle dealer to the closest point of a 

relocating line-make new motor vehicle dealer. North Olmsted Nissan’s second 

assignment of error is therefore overruled. 

{¶67} Applying this definition to Middleburg Heights Nissan’s proposed 

relocation site of 13930 Brookpark Road, we find that the trial court correctly concluded 

that the property located at 13930 Brookpark Road, Cleveland, Ohio, is “further” from 

North Olmsted Nissan’s dealership at 28500 Lorain Road, North Olmsted, Ohio, than 

Middleburg Heights Nissan’s current dealership located at 7168 Pearl Road, Middleburg 

Heights, Ohio. Middleburg Heights Nissan offered evidence that the distance, as 

measured by a straight line, from the closest point of the property located at 28500 Lorain 

Road to the closest point of the property located at 7168 Pearl Road is 7.43 miles. The 

evidence also showed that the distance from the closest point of the property located at 

28500 Lorain Road to the closest point of the property located at 13930 Brookpark Road 

is 7.61 miles. North Olmsted Nissan did not dispute this evidence. 
{¶68} Accordingly, this court affirms the declaratory judgment of the trial court on 

Counts 1 and 2 of the complaint. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

TIM McCORMACK, JUDGE 

SEAN C. GALLAGHER, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR